In Depth

The Indiana Supreme Court has adopted a "substantial trustworthiness" test to determine the reliability of hearsay evidence
in probation revocation hearings.

A 5-0 decision came today in George Reyes v. State of Indiana, 01S02-0612-CR-495, which comes from Adams Circuit Court and
involves a man once convicted and imprisoned for aggravated battery. Reyes began probation in 2000 after his release from
prison, but in February 2005 his probation officer filed a violation petition because Reyes tested positive for marijuana.
An agreement with the state meant that he wouldn't have to serve the entire suspended sentence if no new drugs appeared during
a second test. During a hearing, the trial court allowed affidavits to be entered showing Reyes had used cocaine before the
collection despite Reyes' counsel objections to that as hearsay.

The Court of Appeals rejected Reyes' argument that the evidence admitted violated his due process rights to confront a witness,
and the state asked the justices to clarify a standard for which a trial court should judge the admission of evidence challenged
by a probationer on confrontation grounds.

Prior to this decision, courts had used two principal methods for determining this admissibility: the "substantial trustworthiness
test" and a "balancing test" weighing the probationer's interest in confronting the declarant against the State's interest
in not producing the same.

Court of Appeals judges applied a balancing test in this case, though the 7th Circuit Court of Appeals in Chicago has used
the "substantial trustworthiness" test, Justice Sullivan wrote. He wrote the latter incorporates good cause into its calculus
and is the more effective means.

"The substantial trustworthiness test also provides a clearer standard," he wrote. "A balancing test in which a trial court
weights the probationer's interest in confrontation against the State's good cause for not producing a witness is too unwieldy
a method for everyday use in a proceeding as common as a probation revocation hearing. ..."

In the end, justices affirmed the holding of the Court of Appeals that the affidavits were properly admitted but held that
the trial court should have applied a test of "substantial trustworthiness."

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